NYC Bar Association Releases Report on Legality of Drones

Last month (and somewhat unnoticed — at least by many of us here), the International Law Committee of the NYC Bar Association released a report evaluating the legality of the U.S. drone program in the context of international law. Released on June 19, the 181-report covers a wide array of issues including related to jus ad bellum and jus in bello and evaluating the existence of an armed conflict. (In full disclosure, prior to joining Just Security, while I was an attorney in private practice at Cravath, Swaine & Moore LLP, I worked on the Cravath team that did some very preliminary research on some of the issues discussed in the report.).

Interested readers can access the report and the executive summary from the NYC Bar Association’s website. The press release accompanying the report’s release is also copied below the fold.

City Bar Releases Report on Legality of Targeted Killings by U.S. Drones Under International LawThursday, Jun 19, 2014 – 3:28pm

Anticipating that targeted killings by drones may increase in the future, both by the United States and by other countries, the New York City Bar Association today released a report analyzing the legality of targeted killings by drones launched by the United States in the context of international law.

While noting that there are serious constitutional, moral and policy issues associated with targeted killings using drones, some of which the City Bar has addressed elsewhere, today’s report—titled “The Legality Under International Law of Targeted Killings by Drones Launched by the United States”—deals strictly with the legality of drone strikes under current international law. The 181-page report characterizes the international legal issues as “complex,” and the analysis “complicated” because, among other reasons, “although the analysis of the legality of a drone strike is highly fact-specific, the facts surrounding the strikes are unclear.”

Based on the facts in the public record, the report concludes that while the U.S. invasion of Afghanistan was a legitimate act of self-defense in response to the 9/11 attacks by al-Qaeda, those attacks no longer supply a legal basis for additional measures, such as drone strikes, against al-Qaeda or its alleged affiliates. Rather, under international law, “If the continued use of force is to be justified on the basis of self-defense, it must be justified by current armed attacks,” the report states.

Under international law, the Report concludes, “the inherent right to self-defense is available against non-State actors, such as terrorist groups…if there is an actual or threatened ‘armed attack’ by the non-State actor.” In exercising the right of self-defense, the State may use force against a non-State actor, constrained by the principles of necessity and proportionality, within the territory of another State so long as force is directed against that actor and not another State, even in certain circumstances before an armed attack has occurred if the State has “no choice of means” to protect itself short of the use of force. The report observes, based on publicly-available information, that many States appear to have consented to U.S. drone strikes, making unnecessary any self-defense analysis.

The use of force in another State’s territory without its consent, based on a claim of “self-defense,” triggers a duty to make disclosures to the United Nations Security Council under Article 51 of the UN Charter, the report explains. “[I]f Pakistan currently denies consent to U.S. drone strikes, as it has stated publicly, the U.S. has a duty to report to the Security Council on its invocation of Article 51 with respect to those strikes,” the report states. “Consistent with its prior practice, the U.S. should disclose the armed attack(s) giving rise to the right to act in self-defense and the measures that the U.S. is taking in the exercise of that right. It does not appear that the U.S. has met its disclosure obligations under Article 51 with respect to Pakistan.”

Even if the use of force on another State’s territory is lawful, the report explains, the legality of killing a particular individual depends upon the existence of an armed conflict. According to the Report, “Except in extreme circumstances, a targeted killing outside of an armed conflict is almost certain to be contrary to [International Human Rights Law], which guarantees to each individual the right to life.” Whether an “armed conflict” exists is a determination that must be made on a State-by-State basis by considering the “intensity of the conflict” and “whether the individual non-State organizations in those countries have the structure required to qualify as ‘parties’ to an armed conflict.” The report explains that the issue of an alleged “global war” is irrelevant under international law if the United States is involved in domestic armed conflicts within individual States, even against different parties.

The Report states that where it is determined that the United States is involved in an armed conflict with a non-State actor, “we follow the [International Committee of the Red Cross] Guidance that the principle of distinction permits the United States to target and kill a member of the non-State actor’s ‘armed forces,’ i.e., a member of the armed group who performs a ‘continuous combat function,’” the report states.

Beyond the Article 51 requirements concerning the use of force on another State’s territory, the report concludes that “the United States is not required to make further disclosures on targeted killings under international law, no matter how desirable such disclosures might be as a matter of policy or ethics.”

The Report makes clear that it “does not address the legality of the targeted killings under domestic U.S. law. Nor does it discuss the appropriate policy that should be followed even if that policy is not prohibited by law. However, we recognize that decisions regarding the U.S. targeted killings policy must be considered in the context of this nation’s democratic process. There are serious constitutional and other implications of conducting a largely secret war, and policy issues on its wisdom and morality. Thus, this Bar Association has urged that the U.S. Government make public the legal justification of its targeted killings policy. In a 2012 letter to President Obama, Association President Carey R. Dunne said, ‘Given the importance and relative novelty of the drone strategy, we believe this program should be the subject of informed public discussion and that, so long as the program is in use, decisions to use drone strikes should be made with the strictest of scrutiny and in a manner best calculated to avoid collateral damage.’”